Andhra Pradesh High Court - Amravati
Gollapilli Rama Rao vs The State Of Ap on 1 March, 2023
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
AND
HON'BLE SRI JUSTICE V.SRINIVAS
WRIT PETITION No.38501 of 2022
ORDER:-
Heard the learned counsel for the petitioner and
the learned Government Pleader for the respondents.
2. The order of detention in this case was passed
against the petitioner on the ground that he was involved in
bootlegging activities and is a Boot Legger. The learned
counsel for the petitioner relies upon order passed in
W.P.No.5469 of 2022 where a co-ordinate Bench of this Court
has considered the law on this subject. After a review of the
entire law, the Division Bench came to the conclusion in its
order in W.P.No.5469 of 2022 in Para No.22 as follows:-
"the existence of the element of disturbance to the
public order is a sine qua non for invoking the provisions
of Section 3 of the Act. The said power, conferred on the
authorities, is required to be exercised with lot of care,
caution and circumspection and the same cannot be
exercised in a routine and mechanical manner and
absolutely not on the foundation of assumptions,
presumptions and surmises. Since the power, conferred
under Section 3 of the Act, is undoubtedly an exception to
the normal procedure under the criminal laws and as the
authorities ultimately deal with the Fundamental Right of
Personal liberty of the citizens as enshrined under Article
21 of the Constitution of India strict adherence to the
mandatory provisions of the Statute is indispensible. It is
a settled legal position that the satisfaction, as stipulated
under Section 3 of the Act, should necessarily be a
subjective satisfaction and is required to be on the basis
of cogent and convincing material and not on the
foundation of stale and sterile reasons. Recording of
reasons for such satisfaction is also indispensable and
imperative. It is also a settled and well established
principle of law that so long as ordinary criminal law is
adequate to deal with the offences, preventive detention
without subjecting an individual to the procedure of free
and fair trial would infringe the Fundamental Right to life
and liberty guaranteed under Chapter III of the
Constitution of India."
3. Thereafter, the Division Bench noticed that there
is no material to show that, there is feeling of insecurity
among the general public. It is a condition precedent for
restraining the liberty of an individual under the Andhra
Pradesh Prevention of Dangerous Activities of Boot Leggers,
Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders
and Land Grabbers Act, 1986 (in short 'Act'). Referring to
further judgments, the Division Bench came to the
conclusion that, simply because an individual is a Boot
Legger that would not be by itself enough to press into service
of provisions of the Act.
4. The learned counsel for the petitioner submits
that this would squarely apply to the facts and circumstances
of this case also.
5. On the other hand, the learned Government
Pleader tried to justify the order passed. He relied upon
counter affidavit and argued in line thereof. It is his
contention that all these factors were actually considered
before the impugned orders was passed. Therefore, he
submitted that, this Court should not grant any order in the
writ petition and that the activities of the writ petitioner are
detrimental to the interest of the State.
6. After considering the submissions made, this
Court noticed that despite the best efforts of the learned
Government Pleader, the settled law on the subject appears
to be against him. The Division Bench in W.P.No.5469 of
2022 considered the law on the subject and came to firm
conclusion that simply because an individual is a Boot
Legger, the same would not be sufficient to pass an order of
detention under 1986 Act. Since, the ratio of the said
judgment is applicable to the facts of the case and nothing to
the contrary is produced. This Court finds that the petitioner
is entitled to an order as prayed for.
7. Accordingly, this Writ Petition is allowed. There
shall be no order as to costs.
As a sequel, pending miscellaneous petitions, if any,
shall stand closed.
__________________________________
JUSTICE D.V.S.S.SOMAYAJULU
_______________________
JUSTICE V. SRINIVAS
01.03.2023
Note:-
Issue C.C. by 02.03.2023
B/o
RKS
